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Ask the HR Expert: Employment Law

Posted by NEHRA  January 18, 2011 09:00 AM

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Q. I have question about posting a job online. For legal purposes a position has to be posted even if the position has been filled, correct. Also - how long does this posting have to stay up online, and how long after can the job take effect?

A. Perhaps it is a policy requirement within your company that on-line job posting occur, but this is not a general requirement that exists for all private sector employers. Nor is it a requirement that all on-line posting policies have the same requirements. You need to look at your company’s particular policy. You may want to start by taking your questions to your Human Resources representative.


Q. What is the legal definition of an employee in the state of Massachusetts? We are trying to figure out if a few laws apply to our company specifically. The laws are dependent on the number of employees. Our staff is made up of full-time employees, part-time employees, independent contractors, volunteers. Thank you for any help you can give in this matter.

A. There is no one definition of “employee” that applies for all purposes. You should consult your own legal counsel about this to ensure that the particular facts of your situation are taken into full consideration. The challenge of most employers in Massachusetts is to distinguish “employees” from “independent contractors” for purposes related to benefits, unemployment insurance, workers compensation rules, etc. Most often, the primary statute that the employer must use is M.G.L. c. 149, section 148B. It provides that, unless an exception applies, an individual performing a service “shall be considered to be an employee” unless (1) he or she is free of control and direction in connection with the performance of the service; (2) the service is performed outside the usual course of the business of the employer; and (3) the individual customarily engages in that service in an independently established trade, occupation, profession or business. The Attorney General pays very close attention to this area of the law. For details about this particular statute, you should review a document entitled “An Advisory from the Attorney General’s Fair Labor Division on M.G.L. c. 149, s. 148B, 2008/1,” which you can find on the Attorney General’s website.


Q. I have an employee who has been stealing money and personal items from the office. The problem is that I have no actual proof. We are a small family owned business, and there are only five employees. We have kept everything locked up since this started about a year ago, but a small amount of cash didn’t get locked up and is now missing again. She was the only one present at the time. Can I terminate her without a video or some other proof?

A. Private employers are not held to the same standards of proof as the police or the government. Assuming that your employee is an at-will employee, the employer can terminate the employee's employment for any reason at any time, as long as it is not for an unlawful reason. In situations where the employer believes the employee has engaged in theft, the employer has the discretion to conclude that the employee committed the theft and should be discharged, even if the employer does not have video evidence or other hard proof. However, the employer should still be sure to conduct as thorough an investigation as possible before reaching its determination. If the employee ultimately sues the employer for some form of claim (although the employee's options would be extremely limited under these circumstances), a judge or jury may second-guess the employer's decision even though, technically, the employer has the right to make its conclusions. Therefore, it is most prudent for the employer to demonstrate a reasonable decision under the circumstances by conducting a reasonable and thorough investigation to support the final decision.

— DANIEL B. KLEIN, ESQ., Partner at Seyfarth Shaw, LLP (on behalf of HR Expert KRISTA PRATT)

Q. What legal rules need to be met for a U.S. employer to hire a foreign worker as a non-immigrant worker?

A. There are as number of different nonimmigrant employment visa classifications that allow a U.S. employer to hire a nonimmigrant worker. Some nonimmigrant classifications allow a foreign national to work in the United States without sponsorship from a specific employer; other classifications are employer-specific and require sponsorship by the employer that will employ the foreign worker.

A foreign national who presents a valid Employment Authorization Document (EAD) at the time of hire is generally authorized to work in the United States. If an employee presents an EAD card at the time of hire, he or she has presented a valid I-9 document and has documented both identity and eligibility to work in the United States. Employers should be aware that the fact that an I-9 document has a future expiration is not, by itself, a valid reason not to hire the foreign worker.

Employers seeking to hire foreign nationals who do not have unrestricted employment authorization must sponsor that individual for a nonimmigrant employment visa, such as an H-1B, L-1, TN, O, P, or other temporary employment visa. Sponsorship for an employment visa for a specific duration does not create an employment contract. If the individual is hired as an at-will employee, the visa sponsorship does not change the employer-employee relationship.

Some employment visas create additional obligations to the employer. Employers who sponsor employees for H, O or P visas must agree that if they terminate the employee prior to the expiration of the term of the visa, they will pay for the employee’s return transportation to his or her home country. In addition, employers who sponsor employees for H-1B visas must file a Labor Condition Application to the Department of Labor which requires the following attestations: the employer will pay the higher of either the Prevailing Wage, or the Actual Wage based on the employer’s wage scale; the employer is not hiring the H-1B employee to break a strike or a lockout; the hiring of the H-1B worker will not adversely affect U.S. workers; and the employer has provided notice of the filing to its employees, or (if applicable) to the union bargaining representative. Finally, employers must offer H-1B employees the same benefits as similarly employed U.S. workers.

— JOHN F. QUILL , Partner at Seyfarth Shaw, LLP (on behalf of HR Expert KRISTA PRATT)

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About NEHRA - The Voice of HR Featuring articles and resources for Human Resources / HR professional and hiring managers from the Northeast Human Resources Association (NEHRA).

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